Oral arguments are like childbirth: it may feel wonderful once it’s over, but before and during it’s mostly hard as hell. If you’re preparing for your first oral argument, you may be feeling all kinds of un-wonderful: overwhelmed, anxious, and increasingly certain you’re about to be exposed to the world as a rare dullard. And alive as never before to each and every path to losing your case.
But hey: don’t worry. That’s normal! Healthy, even. Plenty of successful appellate advocates feel that way before every single argument. I do. The worst oral argument I ever gave was the one I felt most comfortable about beforehand. In his indispensable book on appellate oral advocacy, appellate star David Frederick says it thus:
A second wave of apprehension usually occurs after the first moot court when thoughtful colleagues have asked many incisive questions that the advocate—who thought he was prepared—does not know how to answer. While having all of those questions out on the table should become a source of great reassurance, nothing can quite match the feeling of helplessness that arises when question after question comes hurtling in without a coherent legal response. That wave then usually produces a serious emotional trough, as the weaknesses of the advocate’s side of the argument appear glaringly obvious and the strengths of the other side’s theory much more apparent than when the briefs were filed. If the advocate does not go through at least one of these emotional troughs during the preparation process, he probably is not applying a sufficiently objective analysis to his own case.
I urge you to take that last sentence to heart.
Anyway, if you’re preparing for your first oral argument, I have a few suggestions. Think of this as, “I already committed all the blunders so you don’t have to.” (Back in 2017, I wrote a post with advice for appellate lawyers used to arguing in other courts on what’s different about the Third Circuit—link here. You may find that post helpful too, but that one was aimed at experienced appellate folks and this one is written with newbies in mind.)
- Learn from others. Go and watch an argument session in person. Watch video of arguments. Listen to the audio of these arguments by some first-rate advocates. You’ll be amazed how much you’ll pick up just by paying attention to what works and what doesn’t.
- Don’t burn out beforehand. Oral argument is like a marathon race where you’re only timed for the final 400 meters. Many novice advocates panic early, achieve peak mastery well before the argument, and arrive at the courtroom worn out, tired of the sound of their own voice, and fuzzy on the finer points. Even if you find out way in advance that argument has been granted, keep in mind that intense focus in the days beforehand is far more important than starting early. And get as much sleep as you can the several days before the argument, since most of us sleep like crap the night before.
- As you prepare, focus on anticipating hard questions and preparing direct, clear answers. You’re not giving an interrupted speech, you’re having a formal, stylized conversation with three people you’re trying to persuade. During the course of the argument, the judges will do you a spectacular favor: they’ll tell you exactly what reasons might keep them from ruling in your client’s favor. And your #1 job—truly, more important than remembering to pick your nose as few times as possible while at the podium—is to hear the concerns the judges are raising and then to give your most persuasive responses to them. Not to wriggle past the tough questions so that you can get back to what you want to say. And you can only do that if you put in the work beforehand to figure out what those questions are likely to be and how best to answer them.
- Prepare multiple layers of responses. While it’s important to get your best points out directly and clearly, it’s also important to have a back-up plan. Sometimes that point you thought was rock-solid instead goes over like a lead balloon. When judges aren’t satisfied with your initial response and keep pushing, you need to be ready to give them something more and/or something different. They’re telling you they’re not persuaded on this point yet, so here you need to go deeper, which means you need to have multiple layers of responses prepared.
Here’s what I mean. Say one of your main points is that trial counsel’s failure to object to a trial error was deficient performance, and your strongest argument is that the error should have been obvious because it was based on a Supreme Court case decided the year before. So you make that point in a couple sentences. If the panel doesn’t push back, great, you go on to your next main point. But if the panel does push back, you’re ready. In your pocket you’ve got other good arguments on this point—say, why that Supreme Court case isn’t distinguishable, how other circuits have ruled the way you want, how the lawyer’s other blunders show that this error wasn’t intentional, and how the other side implicitly conceded the point in district court. If the judges keep pressing you, you’re able to keep advancing the ball.
If you didn’t prepare multiple layers of responses on your key points, then when your first punch doesn’t land you’re stuck repeating yourself like a broken robot, mumbling something about standing on your briefs, hollering “If you say so, Judge!,” or lamely changing the subject while your face goes full red beet and the judges try to sneak each other knowing eye-rolls.
- Do at least one moot. Lots of lawyers (including some I respect highly) don’t do moots before circuit arguments, but I believe moots (that is, practice arguments with other lawyers playing the role of the judges peppering you with questions) are essential for all of us not named Charles Alan Wright. More to the point, I believe if you don’t moot your first oral argument, then you deserve every one of the the-law-clerks-in-the-courtroom-are-wincing moments you’re so very likely to produce. I suggest two moots, the first one three to five days before your argument and the second the morning before.
- Focus on nailing the basics. When a judge speaks, you don’t. When a judge asks a question, answer it directly and immediately: “Yes, because …” not, “I’ll get to that next …” When you don’t know an answer, say so. Breathe. And, perhaps most importantly, treat opposing counsel (and the district court judge, if you’re the appellant) with absolute professionalism: explain why their position is wrong, not why they’re bad people out to distort the record and hoodwink the court.
- At least get their names right. Mispronouncing a judge’s name may irritate the judge and surely will earn you the wrath and scorn of the judge’s clerks. Here are the ones I’ve heard mangled:
- Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
- Krause—rhymes with ‘house’
- Restrepo—ruh STREPP oh
- Bibas—BEE biss
- Scirica — suh RICK uh
- Cowen — first syllable rhymes with ‘now,’ not ‘go’
- Nygaard — NYE gard (first syllable rhymes with ‘hi’)
For more comprehensive coverage of Third Circuit practice, there’s a detailed Third Circuit practice manual and a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. The governing rules (federal appellate rules, local appellate rules, and circuit internal operating procedures) are all linked here. For authoritative answers to specific procedure questions, the circuit clerk’s office is a lifesaver.
Oral argument is hard, and preparing for your first one can feel overwhelming. But if you put in the work and commit to getting the fundamentals right, you’ll give the judges and your client what they need, and you might even make it out alive.